Johnson v. One Nevada Credit Union

• Court: District Court, D. Nevada
• Decided: March 18, 2022
• Docket: 3:22-cv-00055
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA

5 * * * 6 HENRY JOHNSON, Case No. 3:22-cv-00055-MMD-CLB

7 Plaintiff, ORDER v. 8 ONE NEVADA CREDIT 9 UNION, et al.,

10 Defendants. 11 12 Pro se Plaintiff Henry Johnson brings this 42 U.S.C. § 1983 action against 13 Defendants One Nevada Credit Union, John Scharfenberg, and Brad Beal. Before the 14 Court is the Report and Recommendation (ECF No. 3 (“R&R”)) of United States 15 Magistrate Judge Carla L. Baldwin, recommending that the Court grant Johnson’s 16 application to proceed in forma pauperis (“IFP Application”) and dismiss the case with 17 prejudice. Johnson had until February 18, 2022, to file an objection. To date, no objection 18 to the R&R has been filed. For this reason, and as explained below, the Court adopts the 19 R&R, and will dismiss the case with prejudice because amendment is futile. 20 The Court “may accept, reject, or modify, in whole or in part, the findings or 21 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 22 fails to object to a magistrate judge’s recommendation, the Court is not required to 23 conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas 24 v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 25 1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings and 26 recommendations is required if, but only if, one or both parties file objections to the 27 findings and recommendations.”) (emphasis in original); Fed. R. Civ. P. 72, Advisory 1 clear error on the face of the record in order to accept the recommendation.”). 2 Because there is no objection, the Court need not conduct de novo review, and is 3 satisfied that Judge Baldwin did not clearly err. To start, Johnson’s IFP Application shows 4 that he is unable to pay the filing fee. (ECF No. 3 at 2.) See 28 U.S.C. § 1915(a)(1); Lopez 5 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Next, Judge Baldwin correctly 6 found that Johnson may not bring a Fifth Amendment claim because Defendants are not 7 government officials, bring a § 1983 claim under the Tenth Amendment, and that 8 Johnson’s allegations for due process violations are conclusory. See Stone v. City of 9 Prescott, 173 F.3d 1172, 1175 (9th Cir. 1999) (holding that the plaintiffs “cannot found a 10 section 1983 claim on the Tenth Amendment because it is neither a source of federal 11 authority nor a fount of individual constitutional rights”); Bingue v. Prunchak, 512 F.3d 12 1169, 1174 (9th Cir. 2008) (noting that “the Fifth Amendment's due process clause only 13 applies to the federal government”). 14 Moreover, Johnson fails to allege that Defendants were acting under color of state 15 law, a requirement for § 1983 claims, or that they “conspired or entered joint action with 16 a state actor.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006); Franklin v. Fox, 17 312 F.3d 423, 441 (9th Cir. 2002). Judge Baldwin also correctly found that Johnson fails 18 to specify the right that he was deprived of due to the alleged fraud. See Oklahoma City 19 v. Tuttle, 471 U.S. 808, 816 (1985). Finally, because the Court will dismiss Johnson’s 20 federal and constitutional claims, the Court declines to exercise supplemental jurisdiction 21 over Johnson’s state-law elder exploitation claim under NRS § 41.1395. See 28 U.S.C. § 22 1367(c)(3); City of Chi. v. Int’l College of Surgeons, 522 U.S. 156, 164-65 (1997). The 23 Court therefore agrees with Judge Baldwin and adopts the R&R in full. 24 It is therefore ordered that Judge Baldwin’s Report and Recommendation (ECF 25 No. 3) is accepted and adopted in full. 26 It is further ordered that Johnson’s application to proceed in forma pauperis (ECF 27 No. 1) is granted. 28 The Clerk of Court is directed to file the Complaint. (ECF No. 1-1.) 1 It is further ordered that this case is dismissed with prejudice because amendment 2 || is futile. 3 The Clerk of Court is directed to enter judgment accordingly and close this case. 4 DATED THIS 18!" Day of March 2022.

6 iIREADAM-DO 7 CHIEF UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28